Laura H. Ortiz v. Lowell, City of - City Solicitor (SPR 20190747)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor ofR ecords April 25, 2019 SPR19/747 Hannah Pappenheim, Esq. Assistant City Solicitor City of Lowell Law Department 375 Merrimack Street, 3rd Floor Lowell, MA O1 852 Dear Attorney Pappenheim: I have received the petition of Laura Ortiz appealing the response of the City of Lowell (City) to a request for public records. G. L. c. 66, § lOA; see also 950 C.M.R. 32.08(1). Specifically, on January 29, 2019, Ms. Ortiz requested an opportunity to inspect or electronic copies of: "Updated: DPW School Dude Report regarding requested repairs for ALL Lowell Public Schools -from October 19, 2018-Present day date of January 29, 2019 and/or up to the date you furnish these public records Note: All Lowell Public Schools and also public records in the Electronic Format ofExcel/CSV. Lastly, in the event that you did make a change in record keeping from utilizing the School Dude System to any [other] program, then [whatever] ever that new computer programing entering system you input these maintenance records into is called, please allow that applicable in this request to obtain the exact records in these same parameters." Prior appeals The responsive report in the requested Excel/CSV format was the subject of prior appeals. See SPR19/342 and SPR19/519 Determinations of the Supervisor of Records (Supervisor) (February 22, 2019 and March 22, 2019). Initially, the City provided Ms. Ortiz with the records on a compact disc in Adobe.pdf format, rather than the requested Excel/CSV format. After appeal SPRl 9/342 was opened, the City provided the records in the requested format, and on February 20th Ms. Ortiz informed this office that she was satisfied with the City's response and asked that this office close her appeal. Upon review of the report provided by the City, Ms. Ortiz petitioned the Supervisor, One Ashburton Place, Room 1719, Boston, Massachusetts 02108 • (617) 727-2832• Fax: (617) 727-5914 sec.state.ma.us/pre• pre@sec.state.ma.us

Hannah Pappenheim, Esq. SPR19/747 Page 2 April 25, 2019 objecting to the City's redaction of certain information pursuant to Exemption (n) of the Public Records Law. As a result, SPR19/519 was opened. In my March 22, 2019 determination, I found that the City should clarify whether the redacted information has been made public by the City elsewhere, and whether the City has redacted maintenance issues that have been resolved. I ordered the City to provide Ms. Ortiz with a supplemental response to clarify its position in redacting information from the reports run on February gth that were provided to Ms. Ortiz. Current appeal On April 9t\ Adam LaGrassa, Esq., an Assistant City Solicitor in the City's Law Department, provided Ms. Ortiz with a supplemental response to the March 22nd determination. Ms. Ortiz petitioned the Supervisor as a result of the April 9th response, and the current appeal was opened. The Public Records Law The Public Records Law strongly favors disclosure by creating a presumption that all governmental records are public records. G. L. c. 66, § lOA(d); 950 C.M.R. 32.03(4). "Public records" is broadly defined to include all documentary materials or data, regardless of physical form or characteristics, made or received by any officer or employee of any town of the Commonwealth, unless falling within a statutory exemption. G. L. c. 4, § 7(26). It is the burden of the records custodian to demonstrate the application of an exemption in order to withhold a requested record. G. L. c. 66, § lO(b)(iv) (written response must "identify any records, categories of records or portions of records that the agency or municipality intends to withhold, and prov1de the specific reasons for such withholding, including the specific exemption or exemptions upon which the withholding is based ... "); 950 C.M.R. 32.06(3); see also Dist. Attorney for the Norfolk Dist. v. Flatley, 419 Mass. 507, 511 (1995) ( custodian has the burden of establishing the applicability of an exemption). Exemption (n) Exemption (n) applies to: records, including, but not limited to, blueprints, plans, policies, procedures and schematic drawings, which relate to internal layout and structural elements, security measures, emergency preparedness, threat or vulnerability assessments, or any other records relating to the security or safety of persons or buildings, structures, facilities, utilities, transportation, cyber security or other infrastructure located within the commonwealth, the disclosure of which, in the reasonable judgment of the record custodian, subject to review by the supervisor of public records under subsection ( c) of section 10 of chapter 66, is likely to jeopardize public safety or cyber security. G. L. c. 4, § 7(26)(n).

Hannah Pappenheim, Esq. SPR19/747 Page 3 April 25, 2019 Exemption (n) allows for the withholding of certain records which if released would jeopardize public safety. The first prong of Exemption (n) examines "whether, and to what degree, the record sought resembles the records listed as examples in the statute;" specifically, the "inquiry is whether, and to what degree, the record is one a terrorist would find useful to maximize damage." PETA, 477 Mass. at 289-90. The second prong of Exemption (n) examines "the factual and contextual support for the proposition that disclosure of the record is 'likely to jeopardize public safety."' Id. at 289-90. The PETA decision further provides that "[bJ ecause the records custodian must exercise 'reasonable judgment' in making that determination, the primary focus on review is whether the custodian has provided sufficient factual heft for the supervisor of public records or the reviewing court to conclude that a reasonable person would agree with the custodian's determination given the context of the particular case." PETA, at 289-90. PETA also provides that "[t]hese two prongs of exemption (n) must be analyzed together, because there is an inverse correlation between them. That is, the more the record sought resembles the records enumerated in exemption (n), the lower the custodian's burden in demonstrating 'reasonable judgment' and vice versa." Id., at 290. A review by this office of the February 3th report, pertaining to maintenance issues/work orders provided to Ms. Ortiz, reveals that the City made minimal redactions under Exemption (n) to descriptors that would identify doors, windows and rooms of school buildings that are vulnerable to being breached by individuals with intent to cause harm to the structure and/or persons within the structure. I find that the report, which if disclosed with the descriptions of doors, windows and locks that are in need of repair, is the type of information that a terrorist would find useful to maximize damage. See PETA, 477 Mass. at 289-90. I also find that in the reasonable judgment of the City, and upon this office's review of the report provided to Ms. Ortiz, the disclosure of the locations of doors, windows and other descriptions that identify locations within the schools that could be breached and allow an individual to jeopardize public safety. Id., at 290. Therefore, the City has met its burden of withholding the descriptive maintenance issues under Exemption (n). In her prior petition to the Supervisor, Ms. Ortiz indicated the documents were overly redacted because where the maintenance issue has been resolved "the City should not be entitled to [r]edact anything in that case as there is no present 'safety' issue remaining because that exemption allowance for such was resolved per their own records based on their closed/completion dates." As a result, in my March 22nd determination, I directed the City to provide a supplemental response to clarify whether the City redacted maintenance issues that had been resolved, and whether the City has disclosed any of the redacted information to the public elsewhere. The City's April 9th supplemental response sent to Ms. Ortiz pertaining to the

Hannah Pappenheim, Esq. SPR19/747 Page 4 April 25, 2019 Supervisor's March 22nd determination, states: "On February 11, 2019, the City responded to your request by providing a written response along with a disc containing the School Dude Report from October 19, 2018 to February 8, 2019 (the date this report was [run]). See February 11, 2019 Response Letter, enclosed as Exhibit 1. As noted in the letter, the City provided the entire report requested and only made minimal redactions to door numbers, door location descriptors (i.e. a room number, room name, door name, or specific location), and broken window descriptions that identify a particular door or window. These redactions were applied only where the report lists the maintenance item as incomplete. These redactions were made pursuant to Exemption N because the disclosure of the location of faulty doors or windows poses a threat to public safety.1 " The City's Footnote 1 states, "[i]t should be noted that these redactions were consistent to those which have been applied when you have made similar request for LPS School Dude Reports in the past." After Ms. Ortiz received the School Dude Report in PDF format, she emailed the City on February 11th asking that the report be provided in Excel and/or CSV format. The City accommodated this request and provided the report to her a second time on February 19th in her preferred formats of Excel and CSV. Attorney LaGrassa's April 9th response explains: "[s]ince the PDF document could not be converted back into an Excel or CSV document with the redactions being retained, the City was required to re-do the redactions to the documents in Excel and CSV format." "While the redactions may not exactly mirror those that were applied to the PDF version of the document, they remained narrowly tailored to only apply to maintenance items for door numbers, door location descriptors (i.e. a room number, room name, door name, or specific location), and broken window descriptions that identify a particular door or window listed as incomplete in the report. Those updated versions of the requested [reports] were provided to you by email on February 19, 2019." Attorney LaGrassa concludes, "While perhaps not an exact match, the redactions are minimal in nature and are all narrowly tailored to the specific locations of damaged doors and/or windows within LPS building[ s] that were yet to be addressed at the time the City responded to your request." After receipt of the City's April 9th supplemental response, Ms. Ortiz petitioned the Supervisor asserting, "[w]e challenge respectfully the City of Lowell's Appeal Claims of calling closed/completed maintenance records as now 'incomplete' when in their own records it shows they were in fact completed." Ms. Ortiz asserts in her April 9th letter as she had in her previous petition to this office that the public was allowed to view these reports with the maintenance descriptions in 'real time' in un-redacted format.

Hannah Pappenheim, Esq. SPR19/747 Page 5 April 25, 2019 In my March 22nd determination, I asked the City to clarify whether the February gth report was available to the public in an un-redacted format elsewhere. While the City's April 9th supplemental response clarified the redactions of the February gth reports in Adobe PDF, Excel and CSV, the City did not clarify whether any of the information was available to the public elsewhere in un-redacted format. During a telephone conversation with Attorney LaGrassa on April 23rd, a Public Records Division staff attorney learned that the City provided Ms. Ortiz with copies of the reports that were run on February gt\ therefore the report(s) show the maintenance status on February gth_ The City provided reports from October 19, 2018 through February 8, 2019, the time frame Ms. Ortiz requested and also the date the reports were run. During the discussion with this office, Attorney LaGrassa searched the City's webpages to gauge whether the City had posted or otherwise provided the public with an un-redacted report. Attorney LaGrassa informed this office that he did not find any on-line posting of the report, and that he contacted the City's Department of Public Works (DPW) to inquire whether the DPW has such a posting on-line in an un-redacted format. Conclusion Accordingly, I find that the City has met its burden in responding to the January 29th request and in claiming Exemption (n) to withhold certain descriptive information in the February gth report. I will consider this administrative appeal closed. Sincerely, Rebecca S. Murray Supervisor of Records cc: Laura Ortiz Hannah Pappenheim, Esq.